The expert’s task is to identify the claimant’s medical needs. Funding and legal recoverability are separate questions.
The recommendation must begin with clinical need.
The first question is the same whether treatment will be provided privately or through the NHS: does the claimant require it? A recommendation should identify the condition being treated, the purpose of the intervention and the expected benefit. Physiotherapy might be intended to restore movement, improve strength or support a return to work. Psychological therapy might address accident-related anxiety that is preventing travel or rehabilitation. Surgery may be required because conservative treatment has failed.
Without a defined clinical purpose, private treatment is merely an expense attached to continuing symptoms. The expert should also consider whether treatment is required now. Some injuries improve with advice, activity and time. Immediate private intervention may add little where symptoms are already resolving normally. In other cases, delay may allow stiffness, deconditioning, fear of movement or psychological distress to become more established.
The relevant issue is not whether private treatment is available sooner. It is whether receiving appropriate treatment sooner is likely to make a meaningful difference.
The NHS position must be established rather than assumed.
Reports frequently refer to a “long NHS waiting list” without identifying the service, referral date or expected appointment. The expert should establish whether a referral has been made, whether it has been accepted and what stage the claimant has reached. A wait for an initial assessment is different from a wait for treatment after assessment. The records may also show that an appointment was offered but declined, or that further investigation is required before treatment can begin.
In England, the NHS Constitution provides a right to begin non-urgent consultant-led treatment within 18 weeks of referral, subject to stated exceptions. Where that maximum cannot be met, the NHS should take reasonable steps to offer suitable alternative providers. This right does not cover every form of treatment, including services that are not consultant-led.
The 18-week figure should not therefore be inserted automatically into every report. Physiotherapy, counselling and other community services may operate under different arrangements. Wales also has its own referral-to-treatment and therapy waiting-time measures rather than the English NHS Constitution framework, recommendations must be based on the claimant’s actual pathway, not a general impression that NHS care is slow.
Delay must have a probable clinical consequence.
An expert should explain what is likely to happen if treatment is postponed and the answer may be that recovery will take longer. A claimant awaiting rehabilitation may lose strength, remain absent from work or become increasingly fearful of activity. Someone awaiting psychological treatment may develop a more persistent pattern of avoidance and distress.
In other cases, the delay may be inconvenient but clinically neutral. The claimant may be managing well with a home programme, maintaining function and continuing to improve. Private treatment might provide reassurance without changing the eventual outcome. This distinction matters because medico-legal recommendations are often used to support claims for treatment costs. A report should not imply that delay will worsen the prognosis unless the evidence supports that opinion.
Experts should also resist false precision, it may be reasonable to say that earlier treatment is likely to support faster functional recovery. It may not be possible to state that six private sessions will shorten recovery by a particular number of months.
Private care is not automatically better care.
A recommendation for private treatment should not rest on an assumption that the private sector provides superior treatment, relevant comparison is between appropriate treatment now and appropriate treatment after the anticipated NHS delay. Provider status is secondary.
Private care can offer quicker access and greater appointment flexibility. It may also permit continuity with one clinician. None of this guarantees that the treatment will be suitable, evidence-based or properly coordinated with existing NHS care. The expert should specify the type of practitioner required and the treatment objective rather than naming a preferred clinic. Where possible, treatment should be reviewed against progress, an open-ended recommendation for weekly therapy until symptoms resolve is rarely defensible.
The report may propose an initial assessment followed by a limited course, with further treatment dependent on response. This avoids turning a clinical recommendation into a standard commercial package.
The claimant should not be criticised for lacking funds.
A claimant may agree that treatment would help but be unable to pay privately, this does not amount to poor engagement.
While I am cautious when reports suggest that a claimant has allowed symptoms to continue because they did not arrange private care. Many people cannot meet treatment costs, particularly when an injury has already affected their earnings.
Whether another party should fund treatment, whether an interim payment should be sought and whether the expense will be recoverable are matters for the parties and, if disputed, the court. The expert should provide the clinical evidence required to inform those decisions, not assume that private funding is available. CPR Part 35 confirms that an expert’s overriding duty is to help the court on matters within their expertise, irrespective of who instructs or pays them.
That duty requires the same recommendation whether a claimant or defendant commissions the report.
Rehabilitation should be considered early.
The civil procedure framework does not require the parties to wait until settlement before addressing treatment.
The Pre-Action Protocol for Personal Injury Claims states that the parties should consider early whether the claimant has reasonable needs that could be met through medical treatment or rehabilitation and discuss how those needs might be addressed. It also describes rehabilitation as an ongoing consideration throughout the protocol period.
The Rehabilitation Code similarly promotes cooperation and early intervention so that an injured person has the opportunity to achieve the best reasonable recovery.
These principles support initial treatment where it is clinically justified. They do not require experts to recommend private care in every case or to alter their opinion according to liability arguments, recommendations should remain focused on need.
What should the report contain?
A useful opinion should state:
what treatment is required;
why it is required;
whether the claimant has already been referred;
The available evidence about the NHS wait;
what effect that delay may have;
the expected benefit of earlier intervention; and how treatment should be reviewed.
The expert should also address reasonable alternatives. The claimant may be able to use another NHS provider, begin a supervised home programme or receive interim support from a GP while awaiting specialist care. Private treatment should not be presented as the only option unless it genuinely is.
Where the NHS date is unknown, the recommendation can be conditional. The expert may state that NHS treatment remains appropriate if it can begin within a clinically acceptable period, but that private treatment should be considered if the expected delay exceeds that period.
That is more defensible than treating every waiting list as evidence that private treatment is necessary.
Private treatment can be recommended when NHS care is delayed, but the recommendation must be driven by the probable consequences of waiting. The expert is not there to protect public resources, promote private provision or decide who should pay.
The duty is narrower: identify the treatment the claimant requires, explain when it should begin and state what difference delay is likely to make.
